The procedure for a subcontractor
to perfect a lien claim requires more steps and is more complicated than the
procedures that general contractors follow.
Subcontracts must provide written notice of their claim
to the General Contractor and Owner of the property before filing an Affidavit
Claiming Lien.
The notice must:[1]
(1)
provide notice of
the unpaid claim;
(2)
include Fund
Trapping language;[2]
(3)
be sent by
certified mail to the General Contractor and Owner; and
(4)
be mailed not
later than the fifteenth (15th) day of the third (3rd)
month following each month in which
the labor or material was provided for which the claimant has not been paid.
Once notice is given, to perfect its statutory lien
claim, the subcontractor must timely file an Affidavit Claiming Lien with the
county clerk in the county where the property is located.
The Subcontractor must file its lien affidavit by
the fifteenth
(15th) day of the fourth (4th)
month after the last month the
Subcontractor provided labor or materials to the project.[3]
The Affidavit Claiming Lien must contain the
following:[4]
(1)
a sworn statement
of the amount of the claim;
(2)
the name and last
known address of the owner or reputed owner;
(3)
a general
statement of the kind of work done and materials furnished and a statement of
each month in which the work was done and materials furnished for which payment
is requested (you are not required to set forth individual items of work done
or materials furnished) (you may use abbreviations and symbols customary in the
trade);
(4)
the name and last
known address of the person by whom the claimant was employed or to whom the
claimant furnished the materials or labor;
(5)
the name and last
known address of the original contractor;
(6)
a description,
legally sufficient for identification, of the property sought to be charged
with the lien;
(7)
the claimant's
name, mailing address, and, if different, physical address; and
(8)
a statement
identifying the date each notice of the claim was sent to the owner and the
method by which the notice was sent.
The affidavit must be signed
by the person claiming the lien and must be sworn to (the signature line of the
affidavit must represent that the affidavit was “subscribed and sworn to” and
the affidavit must be notarized). The
contract, invoices, and any notices may be attached.
The Subcontractor must send notice that the lien
affidavit has been filed and a copy of the lien affidavit to the General
Contractor and Owner within five (5) business days of its filing. [5] The notice and copy must be sent by certified
mail. Failure to send the notice within
the applicable time period will void the lien.
To enforce the lien claim, suit must be filed within
the later of:[6]
(1)
two years after
the date after the last date you may have filed a lien affidavit; or
(2)
one year after
completion, termination, or abandonment of the work under the original
contract.
[1] Tex.
Prop. Code § 53.256(b)
[2] Tex.
Prop. Code § 53.256(d)
[3] Tex.
Prop. Code § 53.052(a)
[4] Tex.
Prop. Code § 53.054
[5] Tex. Prop. Code § 53.055
[6] Tex.
Prop. Code § 53.158(a)
Blog by attorney Sarah F. Berry
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